"The problem here is that there are not very many situations where the right to religious freedom means not participating in somebody else's doing something," Friedman said.
The Supreme Court denied the Greens' particular claim when they appealed the ruling to the Supreme Court within the week. However, Justice Sonia Sotomayor did acknowledge that the Court "has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion."
Lower court judges have ruled in four other cases that there is "no substantial burden" on the business owners, citing a separation between the business and the individuals. When a court reaches that conclusion, it does not proceed to analyze the rest of the RFRA or First Amendment claims.
Whose free exercise?
Eugene Volokh, professor of law at the UCLA School of Law, says the legal notion that organizations and corporations have constitutional rights dates back to the 1930s and 1940s. Nothing in the law prohibits individuals organized in a corporate form from exercising constitutional rights.
"Businesses have rights because people—individuals—have rights," he said. "It's nothing odd … for the government to say [that] if a few individuals own a business through the corporate form, they can raise their religious freedom rights through a claim by the business."
And the majority of courts agree: 10 of the 14 religious plaintiffs who have obtained court rulings against the mandate have been granted injunctions on the basis of RFRA claims.
"Is it the exercise of the individuals or the businesses? I'm not sure that it matters all that much," said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which represents many of the religious plaintiffs against the HHS. "The business owners have the right to exercise their religion in the way they exercise their business."
Duncan says the Seventh Circuit Court of Appeals' December 2012 ruling in Korte v. Sebelius zeroes in on the right issues. In its decision in favor of K&L Contractors, a Catholic-owned construction company, the Court found that the owners' religious freedom is violated by K&L's "coerced coverage of contraception."
The ruling also goes a step further: It states that the family's decision to operate as a corporation does not override their claim of religious freedom violations. The ruling references Citizens United v. Federal Election Commission, the controversial 2010 Supreme Court ruling on corporate constitutional rights. In that decision, the court cited the First Amendment's protection of speech in its 5–4 decision that the government could not ban financial contributions by corporations to certain political campaigns.
The issue in the Citizens United case was government regulation of certain types of speech for all businesses—not regulation for a subset of businesses whose owners object to something on religious grounds, Volokh says. If a case against the employer contraceptive mandate reaches the Supreme Court, the ruling likely will be quite narrow, more limited than both Citizens United and the ruling to uphold the individual mandate last summer.